Here’s how not to get sued when reviewing online products

Drawing the legal line between critical and libelous online reviews.

Imagine you just purchased a shiny new wireless router from Amazon, only to discover that the product doesn’t work as you anticipated. To vent frustration and perhaps help others avoid the same mistake, you leave a negative product review—but some of your claims ultimately turn out to be incorrect or misleading.

Now the company’s attorneys want to sue you for your "illegal campaign to damage, discredit, defame, and libel” it. Are you going down in flames? Or can you say what you want on the Internet?

As with many areas of law, the answers are nuanced and complicated. Our primer, however, will help you avoid the obvious pitfalls.

Libel law gray area

Last week, we wrote about how lawyers for wireless router manufacturer Mediabridge sent a scathing cease-and-desist letter to a redditor who goes by “trevely," threatening to sue him unless he deleted his negative review of one of the company's products on Amazon. The reviewer instead posted the letter to reddit, setting off a firestorm of negative publicity against the company.

Mediabridge has since responded by posting a letter to its Facebook page noting that it did not sue trevely (it just threatened him) and that Amazon had rescinded the company’s selling license because of its tactics. Mediabridge has since deleted its Facebook and Twitter accounts, and most of the above-referenced information has been taken down.

A number of readers responded to our piece by noting that this is a classic case of the Streisand effect and by offering their two cents on the thorny nature of libel law. For instance, commenter mikexcite noted that “libel law is counter-intuitive and full of scary gray areas.”

We agree. And given how much commerce takes place online these days and the importance of online product reviews to help guide shoppers to the right products, we think this topic is ripe for further consideration.

It's not an academic debate, either. There's an increasing frequency of legal quarrels over online product reviews, so would-be reviewers should be aware of possible legal implications of their actions.

For example, such recent litigation has included a suit filed by a dentist against one of his patients after the patient had written a negative review. Then there's the suit involving nasty reviews of a local building contractor left by a Virginia homeowner on Yelp and Angie's List.

Truth is your best defense

The law surrounding defamation, defined as “the action of damaging the good reputation of someone,” aims to strike a delicate balance between freedom of expression and the requirement that citizens be held responsible for abusing that right (i.e., why you can’t yell “fire” in a crowded theater).

“You can’t guarantee that you won’t get a nasty letter from an aggressive law firm,” Lee Berlik, an attorney who specializes in defamation law, told Ars after reading through the cease-and-desist letter sent to trevely. “But you can certainly take steps to minimize the likelihood of that happening.”

While describing defamation law as somewhat convoluted, Berlik offered up a simple rule of thumb for would-be reviewers. “The big point is that you can’t make stuff up. It’s fairly easy to not get sued as long as you tell the truth," he said. “If you are upset with a company because you don’t like their product and decide to hurt them by making stuff up on a review site, you can get in trouble. But if you have a negative opinion about something and you are acting in good faith in your review, you are protected by the First Amendment.”

Berlik said that in order to satisfy the requirements for a valid defamation action, the suing party has to show that the defendant’s statement is false, that it is defamatory in nature, and that the defendant acted with a certain level of intent. If, for example, a large and well-known company files suit for defamation, Berlik said that “the company must establish ‘actual malice’—that the person knew what he was saying was false or acted with reckless disregard for the truth."

Analyzing trevely’s situation—and specifically Mediabridge's claim that trevely wrote, “this is a rebranded $20 router from China”—Berlik explained that if trevely knew his review was a false statement of fact and that he wrote it with the intention of harming the company, then it is likely defamatory.

However, Berlik pointed out that in the text of the review transcribed in the cease-and-desist letter, trevely published a link allegedly showing that the Mediabridge router is the same as the $20 router from a company called Tenda, writing, “The FCC filings for Medialink confirms that it is the same product.” Berlik noted that if Medialink is considered a “public figure,” trevely's citation to the FCC filing likely supports his review, assuming he was acting in good faith.

“If it doesn’t isolate him from liability, it comes very close… Even if this statement is false, it’s unlikely a jury would find he was trying to malign them," Berlik said.

Moreover, trevely’s review of Medialink contained a claim saying, “It’s very likely that they are paying for reviews.” Berlik explained that because trevely’s claim is one of opinion that he thinks to be “very likely” rather than a statement of fact, this statement should also not likely constitute defamation.

Scare tactics

Whether or not the law is on trevely’s side, the cease-and-desist letter was a pretty clear scare tactic, according to free speech attorney Paul Alan Levy with the Public Citizen Litigation Group. “The letter was so over the top that you have to think the lawyers were going out of their way to look like they’re filing a lawsuit,” Levy told Ars.

Levy noted that reviewers are safest when they “stick to the facts,” even if the review is negative.

What's more, Levy said, if online reviewers want to protect themselves from paying out-of-pocket expenses related to a defamation suit, they should consider purchasing homeowner's insurance. “If people are going to be active online, they ought to have libel coverage, which is a rider to a homeowner’s policy,” he said. “Generally speaking, an umbrella policy includes personal injury, and most policies do have defamation coverage.”

It might seem strange to need insurance before writing an online review, but consider this: if Mediabridge decides to follow through with its suit against trevely, and even if trevely prevails, he's still responsible for his own legal fees.

“Companies can bully consumers into taking down negative reviews," Berlik said, "since most people don’t want to get involved in a big lawsuit. So consumers are hurt by that."

96 Reader Comments

I used the topics covered in this article to write this post in the comments section specifically with the intention of not getting sued! I have no cease and desist letter in my mailbox so the advice worked! Thanks Ars Technica!

Also use a lot of subjective descriptions. "This product did not perform up to my expectations", the company would be hard pressed to prove in court that you lied about what your original expectations were before making the purchase.

This article featured the word negative many, many times and made me uncomfortable. I was also confused when it started talking about a singer. There was nothing about music in the article! Would not read again. One star.

Also use a lot of subjective descriptions. "This product did not perform up to my expectations", the company would be hard pressed to prove in court that you lied about what your original expectations were before making the purchase.

Exactly this.

You can also preface most of your reviews with "I believe..." and put whatever you want after. It isn't libel if you're stating your own personal beliefs.

Also use a lot of subjective descriptions. "This product did not perform up to my expectations", the company would be hard pressed to prove in court that you lied about what your original expectations were before making the purchase.

Exactly this.

You can also preface most of your reviews with "I believe..." and put whatever you want after. It isn't libel if you're stating your own personal beliefs.

What? No. Seriously, I will not be clutching my anus while writing about a wireless router.

Also use a lot of subjective descriptions. "This product did not perform up to my expectations", the company would be hard pressed to prove in court that you lied about what your original expectations were before making the purchase.

Exactly this.

You can also preface most of your reviews with "I believe..." and put whatever you want after. It isn't libel if you're stating your own personal beliefs.

What? No. Seriously, I will not be clutching my anus while writing about a wireless router.

... and who would have thought that Ars is read anywhere beyond the remit of United States law? Writing from the land where most litigants choose to use our wonderful libel laws to full effect (UK).

Curious though, does the advice in this article not also apply to UK libel law? Is the law framed in such a way as to make it difficult to criticize anything or anyone seriously? I would have a hard time believing that...

"It might seem strange to need insurance before writing an online review, but consider this: if Mediabridge decides to follow through with its suit against trevely, and even if trevely prevails, he's still responsible for his own legal fees."

First IANAL. In regards to the last 3 paragraphs, check the anti-SLAPP laws /statutes in your area, and if you don't have any push your relevant politicians for them. (I lost the word I wanted to use) By my understanding, with anti-SLAPP if you can prove that your speach is protected you can stop them from dragging out the lawsuit/fees, and even get your suer to pay your court fees.

We need to establish some serious punishments for those who abuse threats of a lawsuit to get things done. Think of Prenda, they really don't want to fight you in court, they just want you to pay up. Same for this company, I doubt they would have actually sued, but the threat that their well-funded corporate legal team will crush lonely little you unless you comply is very serious indeed. They don't even need to be standing on solid ground, the expense and hassle of hiring a lawyer and preparing to go to court is enough to get most people to comply, not to mention the chance of financial ruin if one loses.

My solution (totally without any lawyering knowledge) is that people should be able to take companies that do this to something like small claims court, show a judge that they're threatening us, they have almost no legal standing, and that they should either be compelled to actually sue (and they risk having to defend their idiotic position) or shut up.

... and who would have thought that Ars is read anywhere beyond the remit of United States law? Writing from the land where most litigants choose to use our wonderful libel laws to full effect (UK).

Curious though, does the advice in this article not also apply to UK libel law? Is the law framed in such a way as to make it difficult to criticize anything or anyone seriously? I would have a hard time believing that...

Not sure if they've been improved much - either by court ruling or by parliment - but even as recently as 2008 I know they've been considered to be pretty onerous. Because of how ridiculously favorable UK libel law is for well funded plantifs, it is a popular venue of choice for companies and individuals looking for a way to weild threats of libel as means to silence speech they find inconvenient. You might also want to look up the documentary "McLibel" if you want to get an idea of just how badly it can be abused - I believe in that case the ECHR ruled that the defendant's human rights were being violated at least in that specific case. They did fail to condemn the law more broadly though in a recent decision.

... and who would have thought that Ars is read anywhere beyond the remit of United States law? Writing from the land where most litigants choose to use our wonderful libel laws to full effect (UK).

Curious though, does the advice in this article not also apply to UK libel law? Is the law framed in such a way as to make it difficult to criticize anything or anyone seriously? I would have a hard time believing that...

IANAL but, in my former career as a journalist I recall that Canadian (and I believe UK) libel law is different from US law in that it is not necessary for a plaintiff to prove malice; rather, they must only prove 1) that the statement(s) is(are) false AND 2) that the statement(s) caused some harm - Be it harm to one's reputation (in the opinion of right-thinking persons hearing/reading the comments), or harm to the business.

... and who would have thought that Ars is read anywhere beyond the remit of United States law? Writing from the land where most litigants choose to use our wonderful libel laws to full effect (UK).

Curious though, does the advice in this article not also apply to UK libel law? Is the law framed in such a way as to make it difficult to criticize anything or anyone seriously? I would have a hard time believing that...

The libel laws in England (other parts of the UK have somewhat different legislation) have historically given greater weight to complainants, leading to perception of higher chance of success and higher awards of damages. This eventually led to the passing of the Defamation Act 2013 in an attempt to reduce the burden on our struggling court system - http://www.ft.com/cms/s/0/afe77e0c-7204-11e3-bff7-00144feabdc0.html

edit - thanks Charybdisjim, the Grauniad article by Duncan Campbell is the one which was eluding me

This article featured the word negative many, many times and made me uncomfortable. I was also confused when it started talking about a singer. There was nothing about music in the article! Would not read again. One star.

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

Ah... no. Free Speech is not absolute, nor should it ever be. Hence why we have laws regarding Defamation, Slander, Inciting a Riot or Public Panic. Why? Because the rights of an individual to be a asshat are trumped by the rights of society to not have to put up with that kind of crap.

Are you free to be a racist? Yes. Are people free to call you a racist? Yes. Are you free to claim the mayor of Peoria, IL did some horrible crime in 1990 with no evidence? No. Are you free to claim that the urine that entered the reservoir in Portland will cause everyone's faces to boil off and their insides to melt, creating mass panic resulting in the burning of the Rose City and a vicious mob ransacking Tacoma before surrounding Seattle with boats, taking their soccer team out to walk the plank, and building a pipeline to supply the burned out city of Portland (moved to Salem, since smoldering craters don't make for good homes) with fresh, clean water... well, you can't, but if you do, bravo... you've accomplished more in 5 minutes than most people do in a lifetime.

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

You're right, I should be able to yell "Fire!" and incite panic wherever I damn well please. Who cares if it's a crowded theater with one exit and people could get hurt trying to escape? Not my fucking problem, no sir. YOU CAN'T SILENCE ME, FASCISTS!

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

You're right, I should be able to yell "Fire!" and incite panic wherever I damn well please. Who cares if it's a crowded theater with one exit and people could get hurt trying to escape? Not my fucking problem, no sir. YOU CAN'T SILENCE ME, FASCISTS!

In that case however, I think the proper route to take is that the speech itself should be legal, but you should be liable for the consequences - medical bills, civil suits to cover "suffering", refunding the movie tickets, etc. Maybe treat the injuries as if you had personally inflicted them, e.g. assault charges.

... and who would have thought that Ars is read anywhere beyond the remit of United States law? Writing from the land where most litigants choose to use our wonderful libel laws to full effect (UK).

Curious though, does the advice in this article not also apply to UK libel law? Is the law framed in such a way as to make it difficult to criticize anything or anyone seriously? I would have a hard time believing that...

In comments on the earlier ars article about this situation, someone from the UK said something to the effect that truth is no defense there for a libel claim.

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

You're right, I should be able to yell "Fire!" and incite panic wherever I damn well please. Who cares if it's a crowded theater with one exit and people could get hurt trying to escape? Not my fucking problem, no sir. YOU CAN'T SILENCE ME, FASCISTS!

In that case however, I think the proper route to take is that the speech itself should be legal, but you should be liable for the consequences - medical bills, civil suits to cover "suffering", refunding the movie tickets, etc. Maybe treat the injuries as if you had personally inflicted them, e.g. assault charges.

Isn't that kind of like saying that you should be allowed to push someone off a cliff, but if they suffer injuries, you're responsible for them? Somehow, that doesn't seem right.

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

You're right, I should be able to yell "Fire!" and incite panic wherever I damn well please. Who cares if it's a crowded theater with one exit and people could get hurt trying to escape? Not my fucking problem, no sir. YOU CAN'T SILENCE ME, FASCISTS!

In that case however, I think the proper route to take is that the speech itself should be legal, but you should be liable for the consequences - medical bills, civil suits to cover "suffering", refunding the movie tickets, etc. Maybe treat the injuries as if you had personally inflicted them, e.g. assault charges.

But that's a clear example of speech that doesn't call people to violent acts, yet still has the intent to create a potentially violent and chaotic response. Intent has to be considered when we evaluate a particular instance of speech, not just the literal content of that speech.

Don't think it will remain an issue. After what happened to Mediabridge, even the dumbest lawyer now knows what will happen if they threaten and online reviewer.

I'm sure it will happen time and again. Most people aren't so brash that they'd flaunt a threat letter on the internet rather than doing the easy thing and deleting the review. Lawyers do these because they're effective.

[Why? Because the rights of an individual to be a asshat are trumped by the rights of society to not have to put up with that kind of crap.

I disagree 100%. Realize what you are saying here: You are basically saying free speech is only OK if you like what the person has to say or if you agree with it. but if it offends you because what he is saying makes him an "ass hat" then free speech goes down the toilet.

I'd much rather know those ass hats are up to than have them censored, the more you know about your enemies, the better you are off. Moreover, just who do you think you are to limit others people right to hear these ass hats?

You SHOULD be able to yell fire anywhere the hell you want. Look, we either have free speech or we don't. Threats are one thing. But saying anything that doesn't call for violent action should not get you in so much legal trouble. Here is what people never seem to get: It's the crazy-batshit, white supremacist, holocaust deniers that need the most protection by freedom of speech. It should be up to the listener to know what to make of what they hear. Remember, when you censor someone's speech, all you are doing is denying people the right to listen to whatever crazy shit they might have to say.I'd much rather know what my enemies have to say than have them censored.And in the case of this reviewer, so what if he said what he did? That's his opinion and you can cross reference it with others. Even the most insane holocaust deniers might have something of value to say to go along with their delusion, and you might learn something useful from them. So again, it's the responsibility of the reader/listener to use the information wisely.I'll leave you with the best argument of what free speech really is, by Christopher Hitchens:

You haven't fully thought through the purpose of free speech. Its purpose is not to give nut jobs a platform to spew nonsense. That's just a necessary side effect. It's to prevent government from declaring certain inconvenient opinions/facts "illegal". Free speech is there for the Bob Woodwards (Watergate scandal) and Glenn Greenwalds (NSA leaks) of the world.

Remember, the bill of rights does not grant anything to the people. The people, by default, have these rights already. The bill of rights is there to reiterate the most critical rights to free society and to limit the *government* from trying to take them away. Look at how they're worded: "Congress shall make no law", "shall not be infringed", "shall not be violated", "No person shall be held to answer for..." etc, etc.

I have an idea for a companion article to this one. It could be entitled: "So you've lost the 'lawyer's-interest' lottery. How to register formal complaints with the bar associations these lawyers belong to."

Regardless of whether you're in court or not, the Bar can call before it lawyers who commit any ethics violation. Anything a lawyer signs, related to the law or not, is subject to this requirement. Perhaps lawyers will stop sending meaningless cease and desists if its getting them hauled before their bar associations?

(There did seem to be some actionable stuff in the letter that is the focus of this article. Depending on the bar association (and in general), having some inactionable stuff being claimed as actionable could be enough to get a lawyer in trouble).

Don't think it will remain an issue. After what happened to Mediabridge, even the dumbest lawyer now knows what will happen if they threaten and online reviewer.

I'm sure it will happen time and again. Most people aren't so brash that they'd flaunt a threat letter on the internet rather than doing the easy thing and deleting the review. Lawyers do these because they're effective.

They are however "brash" enough to turn the whole affair over to the local news.